Christie Blatchford: Police have more choices than ‘guns blazing or to do nothing’ over Idle No More blockades

Police choices for Idle No More blockades are not guns blazing or to do nothing

Two senior police leaders have told Canadian courts they can stick their foolish injunctions where the sun doesn’t shine.

Both Sarnia police Chief Phil Nelson and Ontario Provincial Police Commissioner Chris Lewis, whose forces were sharply criticized earlier this week by Ontario Superior Court Judge David Brown for their “passivity” in refusing to enforce injunctions to end recent Idle No More rail blockades, have replied with unrepentant public remarks that make it clear they believe police know better than judges.

Commissioner Lewis made his comments on a Toronto radio show Tuesday night (Newstalk 1010, where I’m a regular contributor) and Wednesday in a local tabloid, while Chief Nelson was quoted Tuesday in the online Sarnia Observer.

Bewilderingly, as though the choice for police is always to go in with guns blazing or to do nothing, both Commissioner Lewis and Chief Nelson invoked the spectre of bloodshed as justification for their forces’ failures to carry out Judge Brown’s orders.

Commissioner Lewis thundered that he wasn’t going to “tell a young OPP widow that her deceased police husband gave his life to open the tracks,” while Chief Nelson, mentioning slain native protester Dudley George who died in an OPP raid at Ipperwash Provincial Park 17 years ago, told the Observer “I can sleep at night knowing it was resolved peacefully.”

Chief Nelson claimed to have been enforcing the injunction by negotiating with the protesters.

The OPP boss even purported to lecture Judge Brown, telling the Toronto Sun that “with all due respect to His Honour,” it is better to be patient and negotiate than take “aggressive action, jeopardizing, taking or losing lives, over what amounts to trespassing or mischief and an inconvenience to others.”

He said “Just because a judge, sitting somewhere …” orders an injunction doesn’t mean an “operational commander on the ground” is going to jump, Commissioner Lewis said. “That incident commander makes a decision … and that’s just the way it is.”

Last weekend, as about 15 protesters blocked the CN Rail main line between Toronto and Kingston, Ont., Judge Brown issued an emergency injunction to have them removed.

But when about 10:30 that night the local sheriff asked the local OPP for help, she was told by the commander on the scene that it was “too dangerous” to serve the order.

The protest ended about midnight when demonstrators voluntarily left, or as Judge Brown later put it, “not, as it turns out, because the police had assisted in enforcing the order.”

The Sarnia blockade of a key industrial line serving the area’s “Chemical Valley” lasted almost two weeks, ending Jan. 2 only after another Superior Court judge, John Desotti, ruled the blockade had to stop that day.

Amusingly, given that the police passivity was soon to spread eastward to the Belleville-area blockade and the provincial force, at the time, CN Rail lawyer Chris Bredt told Judge Desotti that if the Sarnia protesters didn’t leave, he would try to have the Sarnia police, who by then already had ignored two separate court injunctions, ask the OPP to end it.

The Sarnia blockade wrapped up that day, though hours after Judge Desotti’s deadline passed, with Chief Nelson attending what were described as the celebratory closing ceremonies.

It was precisely this disconnect between the disparate arms of the law-and-order equation that so troubled Judge Brown.

After his first injunction in the Sarnia blockade, issued Dec. 21, was ignored by the local force — except for one staff-sergeant, who joined the protesters in a drumming circle while he was in uniform and on duty — and lawyers for CN Rail sought a continuance of the order, the force didn’t even bother to send a representative to court.

Judge Brown was of course aware that on-scene police commanders have the discretion to decide how best and when to enforce a court order, and the language of his injunctions reflected that.

But, as he said on Dec. 27 when he essentially re-issued the injunction, “A court order is not one amongst several chips to be played in an ongoing contest between the police and transgressors of legal rights.”

A key distinction in the Sarnia and eastern Ontario blockades — part of the Idle No More movement — is that there is no land claim underlying those protests.

In the two previous major aboriginal protests in Ontario — Ipperwash in 1995 and Caledonia in 2006 — local First Nations were making such assertions.

It was in these kinds of cases, where treaty rights or land claims are being made, that the Ontario Court of Appeal has found that the rule of law may be applied in a “highly textured” or “nuanced” fashion.

That approach, which has come to be translated by police as meaning they don’t need to enforce injunctions in a hasty manner, doesn’t apply in cases of pure political protest.

Idle No More may be about many issues — the Conservative government’s bundling of issues that affect First Nations into an omnibus bill, Attawapiskat Chief Theresa Spence’s hunger strike, aboriginal pride — but it is not and hasn’t been held out to be about land claims.

As Judge Brown said of the Belleville-area blockade, “it was straightforward political protest, pure and simple. Just as 15 persons from some other group would have no right to stand in the middle of the main line tracks blocking rail traffic in order to espouse a political cause close to their hearts, neither do 15 persons from a First Nation.”

In his reasons issued this week in the main line blockade, Judge Brown wondered aloud if “a future exists in this province for the use of court injunctions” when the courts can no longer predict with any certainty if police will enforce their orders.

It appears, from out of the mouths of the boss of Ontario’s largest police force and one of the smaller ones, that the answer is a resounding no.